1994 PLP 661 (MLD)

On 22nd May, 1990,.Aansa Naheed, petitioner herein, filed a suit for dissolution of marriage against respondent No.1 on various grounds, inter alia, cruelty, non-payment of maintenance, non-performance of marital obligations and impotency of respondent No.1. She also asserted is the plaint that it was not possible for the parties to live together as husband and wife and she was entitled to separation on the basis of Khula` too.

2. The suit was contested by respondent No.1. Learned Judge Family Court framed the following issues arising out of the pleadings of the parties:

(1) Whether the defendant treated the plaintiff with habitual cruelty? OPP. (2) Whether the defendant failed to perform matrimonial obligations for a period of more than three years without lawful excuses? OPP. (3) Whether the defendant failed to provide maintenance to the plaintiff for a period of more than two years? OPP. (4) What is the effect of Talaq order passed by Jamat Ahmadia Rabwah? OPP. (5) Whether the plaintiff is entitled for Khula` divorce? If so, on what terms and conditions? OPP. (6) Whether this suit is not maintainable? OPD. (7) Whether this Court lacks territorial jurisdiction to entertain this suit? OPD. (8) Whether the plaintiff has no locus standi to bring this suit? OPD. (9) Relief.

3. After recording evidence of the parties, learned Judge Family Court passed a decree in favour of the petitioner, dissolving her marriage on the finding that respondent No.1 had failed to perform his marital obligations, treated the petitioner with cruelty and had failed to maintain her. It was also found by him that the petitioner was in any case entitled to decree for dissolution of marriage on the ground of Khula` in lieu whereof she would not be entitled to claim dower, dowry and maintenance.

4. It appears that during the pendency of the aforesaid suit, the petitioner had instituted another suit for recovery of dowry amounting to Rs.4,50,

000. After the decision of the suit for dissolution of marriage, respondent No.1 filed an application under Order 7, Rule 11 of C.P

5. Faced with that situation, the petitioner filed an application before the Family Court for clarification in its judgment and decree dated 25th September, 1990. That application was, however, rejected by the Family Court on 7th September, 1991. The petitioner challenged that order by filing a revision which was dismissed by the District Court. Hence this petition.

6. Mr. CA. Rehman, learned counsel for the petitioner maintains that as the suit for dissolution of marriage was decreed not only on the basis of Khula` but also on the grounds of cruelty, non-maintenance and non-performance of marital obligations by respondent No.1, condition attached to the grant of Khula` to the effect that the petitioner would not be entitled to claim any dower or dowry was ineffective and cannot deprive the petitioner of the right to recover dowry.

7. Ch. Ejaz Ahmad, learned counsel for respondent No.1 has defended the impugned order.

8. The question which arises in this petition namely as to whether while passing a decree not merely on ground of Khula` alone but also on other grounds stands answered by this Court in Farida Khanum v. Maqbul Ilahi and 2 others 1991 MLD 1531 wherein it was observed that: "There is much force in the contentions raised by the learned counsel for the petitioner. According to the judgment of the Family Court itself, the petitioner was found entitled to dissolution of marriage on the grounds of cruelty and misappropriation of the articles of dowry which are grounds recognized by the Dissolution of Muslim Marriages Act, 1939 independently of Khula`. If the petitioner had succeeded in establishing these two grounds there was no occasion for the Family Court to have directed the petitioner to forego her claim for dower and maintenance. The distinction between the dissolution of marriage due to cruelty, misappropriation of dowry, non-maintenance of wife and separation on account of Khula` is too obvious to need any comment. In the first case the dissolution results from acts of commission or omission on the part of the husband while in the case of Khula`, the wife is allowed to separate and free herself from the bonds of matrimony, as it is impossible for the parties to live together as husband and wife, within the limits prescribed by God. It is only in these cases that the wife can be asked to compensate the husband. This view finds support from a judgment of this Court in Iftikhar Ahmad v. Husan Pari and others 1988 CLC 2355 and of the Supreme Court in Habibur Rehman v. Additional District Judge, Lahore and others 1984 SCMR 1430." The dictum in the aforesaid case is fully applicable to the present case. In view of what has been stated above, this petition is allowed and the imposition of condition regarding relinquishment of dower, dowry and maintenance in the decree of Judge Family Court dated 25th September, 1990 is declared to be without lawful authority and of no legal effect. H.B.T./A-512/L Petition allowed.